VSAJ v MIMIA & Anor

[2006] HCATrans 455

[2006] HCATrans 455

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M38 of 2006

B e t w e e n -

VSAJ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 11.17 AM

Copyright in the High Court of Australia

VSAJ appeared in person.

MR C.J. HORAN:   Your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Horan, your motion, I think, is it?

MR HORAN: Now, this, your Honour, if I have the right matter, is an application to set aside the deemed abandonment of a special leave application pursuant to rule 41.10.4 of the High Court Rules 2004 as the result of the failure to file a written case within 28 days.

HIS HONOUR:   What are we to do about it?

MR HORAN:   Your Honour, in my submission, the Minister does not consent or oppose the application and ‑ ‑ ‑

HIS HONOUR:   If I were to regularise it, what form would that order take?

MR HORAN: I think it would be an order pursuant to rule 41.10.4 which allows the Court to otherwise order or direct and that the form of that order or direction would simply be to extend the time within which the written case should be filed and to fix an appropriate date for that to take place.

HIS HONOUR:   Yes.  Before we begin, forgive me if I do not use your proper name because the Act tells me that I may not.

VSAJ:   That is okay.  No.

HIS HONOUR:   Which leaves me in the awkward position of not being able to treat you with the courtesy which I feel I should be able to do so, but there we are.  Where are you up to with your written case?  Are you able to file your written case soon?

VSAJ:   Soon, yes, sir.

HIS HONOUR:   How soon can you file it?

VSAJ:   First of all, I would like to thank you, sir.  At this moment I have my medical certificate with me.

HIS HONOUR:   Yes.  Do not worry about, for the moment, whether you need ‑ ‑ ‑

VSAJ:   Okay.

HIS HONOUR:   How much time do you need to file it?  When can you do it?

VSAJ:   On my request, could I get four weeks of time?

HIS HONOUR:   Yes.  So, if we extended it through until 22 September, that is just over four weeks, is that going to be enough time for you?  If we said 22 September?  I am sorry, am I going too quickly?

VSAJ:   No, no.

HIS HONOUR:   That is my habit.

VSAJ:   I am thanking you, you are so generous with me.

HIS HONOUR:   We have not got to the end of it yet.  Do not start thanking me yet.  Who knows what will happen.  Mr Horan, if I fixed 22 September?

MR HORAN:   Yes, I have no ‑ ‑ ‑

HIS HONOUR:   Is there anything you want to say about that?

MR HORAN:   No, your Honour.

HIS HONOUR:   And if I made the costs the Minister’s costs in the application?

MR HORAN:   Yes, your Honour, although it may be – I am not sure how the proceeding, at least, if the applicant remains unrepresented, needs to go at first through a stage on the papers and it may be that the Minister is never served with the written case, but assuming that a costs order may still be made in those circumstances, then the costs of today could be included in that order.

HIS HONOUR:   Yes.  Mr Applicant, what I am minded to do is to make an order that the time for the applicant to file and serve his written case and accompanying documents is extended to 4.00 pm, 22 September 2006.  The costs of this application will be the Minister’s costs in the application.  Now, two things:  one, you have until Friday, 22 September.  You have to have it done by then.  You understand that?

VSAJ:   Yes, sir.

HIS HONOUR:   The second thing is, I am not making an order for costs today, but if you lose the application for special leave the Minister will get the costs of today then.  You understand that?

VSAJ:   Yes, sir.

HIS HONOUR:   But Friday, 22 September is the last day.

VSAJ:   Yes, sir, thank you.

MR HORAN:   Your Honour, just one minor matter.

HIS HONOUR:   Yes.

MR HORAN:   The proposed direction was for the time for the applicant to file and serve the written case to be extended, I think ‑ ‑ ‑

HIS HONOUR:   File, should it not be?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Yes.  I will recall the order earlier made.  In lieu, I will order that the time for the applicant to file his written case and accompanying documents is extended to 4.00 pm, 22 September 2006.  The costs of the application will be the Minister’s costs in the application for special leave.

Yes, thank you.  You may go.

AT 11.23 AM THE MATTER WAS CONCLUDED